The Louisiana legislature has passed new laws requiring employers to provide accommodations for certain pregnant employees and limiting an employer’s use of an applicant’s criminal history in hiring decisions. Both laws become effective on August 1, 2021.
Amendment to Pregnancy Accommodation Law
By Act No. 393 of the 2021 Regular Session, Louisiana’s nondiscrimination law protecting “pregnancy, childbirth and related medical conditions” in employment (La. R.S. 23:341–42), was amended to include a requirement that employers provide reasonable accommodations for pregnant employees. The law, which is applicable to employers with more than 25 employees, makes it unlawful for a covered employer to:
- Fail or refuse to make reasonable accommodations for an applicant or employee with covered limitations unless the employer can show that the accommodation would impose an undue hardship on the business;
- Deny employment opportunities to a covered applicant or existing employee based on the need for reasonable accommodations;
- Require a covered applicant or existing employee to accept a reasonable accommodation they do not want or need;
- Require a covered employee to take leave under any leave law or policy if leave can be avoided through the provision of a reasonable accommodation; and
- Take adverse action against a covered employee for requesting or using a reasonable accommodation.
The new definitions section codified at La. R.S. 23:341.1 sets forth a non-exhaustive list of specific examples of “reasonable accommodations,” which includes:
- Making existing facilities readily accessible to and usable by applicants or employees with covered limitations;
- Providing scheduled and more frequent or longer compensated break periods;
- Providing more frequent bathroom breaks;
- Providing a private place, other than a bathroom stall, for the purpose of pumping breast milk;
- Modifying the food or drink policy;
- Providing seating or allowing applicants or employees with covered limitations to sit more frequently if the job requires them to stand;
- Providing assistance with manual labor and imposing limits on lifting;
- Temporarily transferring a covered employee to a less strenuous or hazardous vacant position for which they are qualified;
- Providing job restructuring or light duty work if available;
- Acquiring or modifying equipment or devices necessary to perform essential job functions; and
- Modifying work schedules.
The new law, however, limits how far an employer must go to accommodate a covered applicant or employee. Specifically, employers are not required to create additional employment opportunities or new positions or to discharge any employee, transfer any employee with more seniority, or promote an employee who is not qualified to perform the job, provided that the employer does not do so for any other employees or class of employees who need a reasonable accommodation.
Use of Background Checks in Hiring
Joining a growing list of states with “fair chance” laws intended to level the playing field for applicants with criminal histories, the Louisiana state legislature also passed Act 406, the first Louisiana law to directly regulate the use of criminal history in hiring decisions.
The law expressly prohibits employers from requesting or considering an applicant’s arrest record or charge that did not result in a conviction when making a hiring decision.
It also requires employers to make an “individual assessment” of whether an applicant’s other criminal history records have a “direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.” It sets forth three considerations for employers making this assessment:
- The nature and gravity of the offense or conduct;
- The time that has elapsed since the offense, conduct, or conviction; and
- The nature of the job sought.
Additionally, the law mandates that an employer provide to an applicant any background check information used during the hiring process if the applicant makes a written request.
Conclusion
With both laws becoming effective in a matter of days, employers should become familiar with the requirements and update their hiring policies and practices accordingly. If you have questions about the amendments to Louisiana’s pregnancy accommodations law or the new law regulating the use of criminal history in hiring decisions, please contact Liskow & Lewis’s employment law team.
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